Dismissed

Amarchand Lunkad v. Smt. Dipti Lunkad

Chhattisgarh HC5 May 2024FA(MAT)/23/2021

Case brief

AI extract

What is this about?

The High Court of Chhattisgarh dismissed an appeal against the Family Court's judgment dismissing a divorce suit. The court held that neither cruelty nor desertion was established, as the wife's separation occurred due to the husband's imprisonment and lack of financial ability, and there was no evidence of mental cruelty by her.

What did the court decide?

The appeal was dismissed; the Family Court's judgment and decree dismissing the dividend suit were affirmed.

Amarchand Lunkad Vs Smt. Dipti Lunkad — Matrimonial and Divorce | Chhattisgarh HC (2024)

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NAFR

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HIGH COURT OF CHHATTISGARH, BILASPUR

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FA(MAT) No. 23 of 2021

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Judgment Reserved on 08.04.2024

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Judgment Delivered on 06.05.2024

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Amarchand Lunkad, S/o Late Shantilal Lunkad, aged about 44 Years, R/o Village Korer, Tahsil and District Kanker, Chhattisgarh.

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----Appellant

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Versus

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Smt. Dipti Lunkad, W/o Amarchand Lunkad, aged about 42 Years, R/o Gandhi Chowk, Infront of Digamber Jain Mandir, Alka Typing Street, Durg, District Durg, Chhattisgarh.

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---- Respondent

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For Appellant Ms. Fouzia Mirza, learned Senior Advocate with Ms. Sakshi Mehta, Advocate.

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For Respondent Mr. Avinash Chand Sahu and Mr. Aman Tamrakar, Advocates.

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Hon’ble Shri Justice Goutam Bhaduri &

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Hon’ble Shri Justice Radhakishan Agrawal C A V Judgment

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Per Radhakishan Agrawal, J.

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Appellant-Husband preferred this appeal against the judgment and decree dated 17.03.2021 passed by the 3^rd Additional Principal Judge, Family Court, Durg, C.G. in Civil Suit No.504-A/2018, whereby the learned Family Court has dismissed the suit filed under Section 13(1)(i-a)(i-b) of Hindu Marriage Act, 1955 (for short, 'the Act, 1955') by the husband/appellant for grant of decree of divorce.

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It is not disputed that the marriage between the parties was

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solemnized on 27.01.2004 and out of their wedlock, they have been blessed with two children and upto seven years of marriage, there is no dispute between them.

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The facts, in brief, are that in the year 2010, a raid was conducted by the Crime Branch, Kanker at the shop of the appellant wherein some objectionable articles were seized and offence was registered against the appellant-husband. While the appellant remained in jail, the respondent-wife had gone to her parental home at Durg along with her children and got her children admitted in Krishna Public School, Bhilai and since then she is living at her parental home. It is also pleaded that when the appellant got acquittal in the said criminal case, he went to the house of his wife to take the respondent-wife and children back, but the respondent denied living with him. It is also pleaded by him that in order to save his matrimonial life, the appellant started living at the house of his wife where the appellant was subjected to cruelty by the family members of his wife. During this period, some community elders tried to reconcile the dispute, but the respondent-wife denied the same. In the meantime, father of appellant- husband has died on 31.12.2014 at Raipur whose death rituals was conducted by the appellant at Raipur, however, the respondent-wife and her family members did not attend the ceremony. Thereafter, in order to save his matrimonial life, appellant presented a case before the learned Family Court under Section 9 of the Hindu Marriage Act, 1955 for restitution of conjugal rights which was ultimately withdrawn by the appellant as the respondent-wife did not show any interest to live with the appellant. Being fed up with the

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persistent ill-treatment made by the respondent-wife, the appellant was compelled to file the present suit seeking dissolution of marriage.

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By filing written statement, the respondent-wife specifically pleaded that after marriage, she came to know that appellant and his family members got their marriage solemnized on the pretext that the appellant-husband is B.Sc. student whereas he did not pass the degree of B.Sc. It is also specifically pleaded that even after two years of marriage, the appellant and his family members subjected her to mental harassment by demanding dowry and had quarrels with her over petty matters, which she continued to tolerate. It is categorically pleaded by her that appellant is a money greedy person and had gone to jail for unethical act of black marketing of Kerosene and for keeping illegal explosive substance i.e. sulfur. It is further pleaded that the appellant and his family members started beating and abusing her, which compelled her to face death situation. After the appellant was released from jail, the appellant committed marpeet with her and ousted her from the house. Since then she has been living at her parental home. Since the appellant himself has withdrawn the application under Section 9 of the Act, 1955, therefore, he has filed the present application seeking dissolution of marriage which is liable to be dismissed.

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On the basis of the averments made by the parties, the issues were framed and after affording opportunity of hearing to the parties, the Family Court decided all the issues in negative and dismissed the suit by holding that the husband / appellant failed to prove the grounds of cruelty and desertion.

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Learned Senior counsel for the appellant / husband would submit that the respondent-wife has deserted him since 2012 when she left the matrimonial home and started living at her parental home where the appellant-husband also lived with wife and children for a period of ten months. She would further submit that since there was no physical relationship between them from the year 2012, therefore, the appellant has filed application under Section 9 of the Act, 1955 which was ultimately withdrawn by him as the respondent did not show any interest to join the company of appellant. Therefore, the appellant has been compelled to file the present suit on the ground of desertion, but trial Court did not consider the fact that there was no cohabitation between them since 2012, and instead held that the appellant himself has failed to prove his case. On these grounds, she urged that appellant-husband is entitled to decree of dissolution of marriage. Reliance has been placed on the decisions of Hon'ble Supreme Court in the matters of Sanat Kumar Agarwal vs Nandini Agarwal¹ & Durga Prasanna Tripathy vs Arundhati Tripathy² .

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Per contra, learned counsel for the respondent / wife would submit that the appellant / husband and his family members subjected her to mental harassment for demand of dowry and used to make assault on her. Besides the appellant was also engaged in illegal activities for which he remained in jail and even after his release, he used to harass and torture her. Therefore, she has been compelled to live at her parental home along with children. Despite that, she is always ready and willing to discharge her marital obligations, but it was the

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2 (2005) 7 SCC 353

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1 (1990) 1 SCC 475

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appellant-husband who created hindrances in her life because of which she was not able to perform her marital obligations properly. Hence, the impugned judgment and decree passed by the Family Court are well merited, which do not call for any interference.

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We have heard learned counsel for the parties and perused the record carefully.

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Before the trial Court, the appellant examined himself as PW-1 and in support of his evidence also examined one Santosh Pandey as PW-2 and also filed document in relation to filing of order passed under Section 9 of the Act, 1955, whereas in support of her evidence, respondent-wife has been examined herself as DW-1 and has examined her mother as DW-2 Smt. Jhankari Bai.

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Reiterating the pleadings as made in the plaint, the appellanthusband has specifically stated that upto seven years of marriage, their relations were cordial and there was no dispute between them. It was the year 2010, when Crime Branch, Kanker raid his shop, then only a criminal offence was registered against him and he had to languish in jail and when he remained in jail, the respondent-wife had left the matrimonial home in the year 2012 and started living at her parental home along with children and got their admission in Krishna Public School, Bhilai. He has further stated that after release from jail, he met the respondent-wife in her parental home where she has clearly told him to stay at her maternal home itself and did not want to join his company. After hearing her, the appellant, in order to save his matrimonial life, compromised himself and started living with her at her

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parental home wherein during his stay, he was insulted and humiliated by the respondent and her family members and that he has to tolerate them for a period of ten months. During that period of ten months, the appellant persuaded her to return to the matrimonial home, but she clearly refused to live with him and his joint family. Thereafter, the matter was tried to be reconciled by the community members which would fetch no result. It is further stated by him that when his father died on 31.12.2014, then also she did not take part in the ceremony. It was further stated by the appellant that respondent-wife has deserted him without any reason since 2012 when he was in judicial custody. He has been subjected to cross-examination. In cross-examination, he has admitted that the factum of living with the respondent-wife for a period of seven years and after that, he has been arrested in connection with illegal activities and on account of this reason itself, distance between them has inflated. Further, it has been admitted by him in para 26 that after he was released from jail, the respondent-wife and children stayed with the appellant at Durg for a period of one year and during that period, their cordial relations were good.

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PW-2 Santosh Pandey has stated on oath that after marriage, both the spouses lived for a period of seven years and when the appellant was arrested and jailed, the respondent-wife took her children and started living at her parental home since 2012 and when the appellant was released from jail, then the respondent-wife has categorically refused to live with him and appellant had no other option, but to stay with her at her parental home for a period of ten months in order to save his matrimonial life. Further he has reiterated the facts with

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respect to death of appellant's father and that respondent did not take part in that ceremony. It is further stated by him in cross-examination at para 8 that after marriage of seven years, there was no dispute between the appellant and the respondent.

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DW-1 wife has stated in her chief examination that after incarcerating in jail, the appellant was released after 7-8 months and after his release, he started assaulting her and ousted her from the house. In para 5 of chief examination, she has stated that although the appellant has filed application under Section 9 for Restitution of Conjugal Rights, but later the same was withdrawn by him informing her that he did not take her back resulting into the said application was rejected as withdrawn. She has admitted in cross-examination that during course of marriage, there was no dispute between them and further admitted that after marriage, she started living with the appellant at his village Korar and was leading marital life and discharging her marital duties. In para 8, she has admitted that despite the appellant committed assault on her both mentally and physically, but did not report the matter to any police station. In para 18, she has admitted that since her marriage in 2004, till date she has not made any complaint against the appellant and further admitted that a case was registered against the appellant in the year 2011 by the Police Station, Kanker, as a result of which, the appellant was in jail and when he was in jail, she had come to her parental home at Durg accompanied by two children. She has further admitted that her in-laws told her that appellant's case could be dangerous and he could be punished, therefore, they would not able to bear the expenses of her and children, therefore, they sent her to her

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parental home. In para 20, she has denied the fact of the appellant being lived with her for a period of one year at her parental home, but admitted that he lived with her for a period of three months. She has admitted in para 21 that appellant left her in the year 2012 and went to his parents and thereafter, neither of her family members had gone to meet the family members of the appellant. She has further admitted that when the respondent asked the appellant to manage the expenses to run the family, then the appellant told her that he cannot make further arrangement for running his family and in turn, asked her family members to make arrangement for her livelihood, which has been refused by them. Thereafter, the appellant left his village Korar leaving her and children at her parental home.

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The husband sought decree of divorce on the grounds of cruelty and desertion. In this regard, the Supreme Court in the matter of Savitri Pandey v. Prem Chandra Pandey, (2002) 2 SCC 73 , has observed thus in paras 6 and 9 :

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“6. Treating the petitioner with cruelty is a ground for divorce under Section 13(1)(i-a) of the Act. Cruelty has not been defined under the Act but in relation to matrimonial matters it is contemplated as a conduct of such type which endangers the living of the petitioner with the respondent. Cruelty consists of acts which are dangerous to life, limb or health. Cruelty for the purpose of the Act means where one spouse has so treated the other and manifested such feelings towards her or him as to have inflicted bodily injury, or to have caused reasonable apprehension of bodily injury, suffering or to have injured health. Cruelty may be physical or mental. Mental cruelty is the conduct of other spouse which causes mental suffering or fear to the matrimonial life of the other. “Cruelty”, therefore, postulates a treatment of the petitioner with such cruelty as to cause a reasonable apprehension in his or her mind that it would be harmful or injurious for the petitioner to live with the other party. Cruelty, however, has to be distinguished from the ordinary wear and tear of family life. It cannot be decided on the basis of the sensitivity of the petitioner and has to be adjudged on the basis of the course of conduct which would, in general, be dangerous for a spouse to live with the other. In the instant case both the trial court as well as the High Court have found on facts that the

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wife had failed to prove the allegations of cruelty attributed to the respondent. Concurrent findings of fact arrived at by the courts cannot be disturbed by this Court in exercise of powers under Article 136 of the Constitution of India. Otherwise also the averments made in the petition and the evidence led in support thereof clearly show that the allegations, even if held to have been proved, would only show the sensitivity of the appellant with respect to the conduct of the respondent which cannot be termed more than ordinary wear and tear of the family life.

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Following the decision in Bipinchandra case [AIR 1957 SC 176] this Court again reiterated the legal position in Lachman Utamchand Kirpalani v. Meena [AIR 1964 SC 40] by holding that in its essence desertion means the intentional permanent forsaking and abandonment of one spouse by the other without that other's consent, and without reasonable cause. For the offence of desertion so far as the deserting spouse is concerned, two essential conditions must be there (1) the factum of separation, and (2) the intention to bring cohabitation permanently to an end (animus deserendi). Similarly two elements are essential so far as the deserted spouse is concerned : (1) the absence of consent, and (2) absence of conduct giving reasonable cause to the spouse leaving the matrimonial home to form the necessary intention aforesaid. For holding desertion as proved the inference may be drawn from certain facts which may not in another case be capable of leading to the same inference; that is to say the facts have to be viewed as to the purpose which is revealed by those acts or by conduct and expression of intention, both anterior and subsequent to the actual acts of separation.”

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In Smt. Rohini Kumari Vs. Narendra Singh {AIR 1972 SC 459}, the Supreme Court held that desertion does not imply only a separate residence and separate living. It is also necessary that there must be a determination to put an end to marital relation and cohabitation.

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Considering the facts of the present case in light of the aforesaid principles of law laid down by their Lordships of the Supreme Court, it is quite vivid that marriage between the parties was solemnized on 27.01.2004 and their relations were cordial for a period of 7 years when respondent-wife was living with appellant-husband at village Korar. Perusal of above evidence would reveal that the appellant-husband was arrested by the Kaner Police in the year 2012 as he was involved in illegal activities for which he has been convicted and sentenced and

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ultimately, he was acquitted of the charge. It is also apparent that during his jail sentence, family members of the appellant compelled the respondent-wife to leave matrimonial home on the ground that they cannot bear the expenses of her and children as the involvement of the appellant in criminal case could be danger. Further, it is also evident that when the respondent-wife asked the appellant to make arrangement for their livelihood, but the appellant himself expressed his inability to make arrangement for their livelihood. It is also manifest that since their marriage in 2004 till date, the respondent-wife did not make any complaint against her husband despite she tolerated the harassment meted out by the appellant and his family members. It is also clear that even after his release from jail, the appellant-husband and respondent-wife lived together for a period of three months, which shows that the respondent-wife is always ready and willing to live with the appellant despite there being unfavourable condition. It is also evident that it is the appellant who left the respondent in the year 2012 at her parental home. Now it is to be seen that as to whether the respondent-wife has deserted the appellant-husband and started living at her parents home for maintaining herself and children when he was languished in jail, if the evidence brought on record with respect to desertion by the appellant is taken on record, then it would not amount to desertion because respondent-wife had no other option but to leave the matrimonial home in absence of her husband-appellant who was languishing in jail.

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As regards the cruelty meted out by the respondent-wife to appellanthusband, there is no evidence on record neither oral nor documentary to prove that appellant-husband was subjected to cruelty by the

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respondent-wife nor any witness was examined by him to prove the cruelty meted out by the respondent-wife. Having gone through the judgments relied upon by learned counsel for the appellant / husband and the principles of law laid down therein, in the given facts and circumstances of the present case, the aforesaid judgments being distinguishable on facts are of no help to the appellant / husband.

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The Family Court, considering the evidence and material available on record, held that the appellant-husband has failed to prove the allegations levelled by him against the respondent-wife, therefore, he is not entitled for a decree of dissolution of marriage and accordingly, dismissed his suit. Therefore, on overall assessment of the evidence, we are of the opinion that cruelty & desertion on which divorce was sought for have not been able to be proved by the appellant-husband.

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Being so, the finding arrived at by the learned Family Court rejecting the decree of dissolution of marriage as sought for by the appellanthusband does not call for any interference.

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In the result, the appeal filed by the appellant-husband being without any substance is liable to be dismissed and is, accordingly, dismissed.

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A decree be drawn up accordingly.

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Sd/Sd/( Goutam Bhaduri) (Radhakishan Agrawal) Judge Judge

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Anjani / Akhilesh

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Amarchand Lunkad v. Smt. Dipti Lunkad

Case brief

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Amarchand Lunkad v. Smt. Dipti Lunkad

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